124 Ga. 459 | Ga. | 1905
When a married woman is injured by the wrongful conduct of another, two different causes of action may arise: the one in her favor for her own pain and suffering, and the other in favor of the husband for the loss of his wife’s services and for expenses incurred as a consequence of the injuries to her. These causes of action are separate and distinct,-and in favor of different parties. Therefore they can not be properly joined in one suit. Civil Code, §§4938-4946. A petition by a husband and wife, which sets forth a cause of action in favor of the wife and one in favor of the husband, although both arise out of the same transaction, is subject to the objection that there is in such petition a misjoinder of causes of action. Can this defect be cured by amendment elimi-
Prior to the enactment of the married women’s act of 1866, the earnings of the wife belonged to the husband, unless they were living separate and apart, or she had been declared a free trader in conformity to law, or unless the husband expressly relinquished his right to such earnings in her favor. Oglesby v. Hall, 30 Ga. 386; Cavanaugh v. Ainchbacker, 36 Ga. 500; Gorman v. Wood, 73 Ga. 307; Wood v. Wilson Sewing Machine Co., 76 Ga. 104. In Dumas v. Neal, 51 Ga. 566, Judge McCay expressed a doubt as to whether
It must be treated, then, as the settled law of this State, that, even since tlie act of 1866, where a husband and wife are living together, the husband is entitled to her earnings, unless he consents that she may receive them as her own. If a wife who is living with her husband, and is engaged in a business or avocation from which earnings result, receives an injury at the hands of a wrong-doer I which incapacitates her, either in whole or in part, from perform!ing the work of such business or avocation, she is not entitled to 'recover on account of the loss thus occasioned, unless the husband ¡has given his consent to her engaging in this business and receiving her earnings therefrom as her own. If the husband did not consent, and the wife is therefore not entitled to recover, and the husband should'not be allowed to recover, the wrong-doer would be under a legal obligation to compensate no one on account of his tortious act. There are instances, probably many of them, where the wife has a peculiar talent which if exercised results in large earnings, and she is willingly exercising this talent and allowing her husband to receive the benefit by appropriating the earnings. It certainly can not be the'law that in such a case the wrong-doer whose act entirely destroys the power of the wife to exercise the talent would be liable to ho one for such damages resulting from his conduct. Such an injury to such a wife results in damages to somebody, which must be compensated in money; and if the wife
It was further contended that the charge was erroneous because' it in effect instructed the jury as to what was negligence. We-do not think it was subject to this criticism.
Of course we can not tell how much the jury allowed the wife for-pain and suffering, and how much was allowed the husband for loss of services. But the evidence was of such a character that the aggregate sum of $5,000 for both items was not excessive. The evidence as to the negligence of the defendant was conflicting, but there was evidence upon which the jury could base a finding in favor of the plaintiff. The discretion of the trial judge, exercised in refusing a new trial, will not be controlled.
Judgment affirmed.